The Dread of Waiting for the Supreme Court to Rule on L.G.B.T. Rights

As currently constituted, the Supreme Court appears likely to rule that the Civil Rights Act does not ban discrimination against L.G.B.T. people.

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On Monday, the Supreme Court announced that it would hear three cases that seek to determine whether existing federal law bans workplace discrimination on the basis of sexual orientation and gender identity. Among L.G.B.T. activists and advocates, one could sense something like a deep intake of breath, of the sort one makes when a fragile object is starting to tumble off a shelf across the room. You know it’s going to shatter, you are too far away to try to catch it, and you watch, helplessly, its interminable path to catastrophe.

“Not great news from the Supreme Court this morning,” Katherine Franke, a law professor and the director of the Center for Gender and Sexuality Law at Columbia University, wrote on her Facebook page. She said it was “unlikely” that the court’s conservative majority would find that Title VII of the Civil Rights Act of 1964, under its provisions prohibiting sex discrimination in the workplace, protects L.G.B.T. employees. “Our work, like in almost all other areas now, will be harm reduction,” Franke added.

For nearly two decades, the dominant legal strategy of the L.G.B.T.-rights movement, and its ultimate measure of success, was marriage equality. It wasn’t always so: earlier legal gains for gay people were in repealing sodomy laws and in passing municipal- and state-level bans on discrimination. (Wisconsin became the first state to ban discrimination based on sexual orientation in all employment, in 1982; Massachusetts became the second, in 1989.) On the federal level, it took until 2003 for the Supreme Court to rule that all state sodomy laws were unconstitutional. Bills that would have amended Title VII to include protections from discrimination on the basis of sexual orientation and gender identity have died many deaths in Congress, beginning in 1974. But, starting in the two-thousands, most of the gay legal muscle went to marriage.

Progress in securing the right to marry was head-spinningly swift. Most L.G.B.T. adults will tell you that when they first experienced same-sex attraction, they were certain that they would never be able to have a legally, publicly sanctioned relationship. Then, in 2003, Massachusetts became the first state to legalize same-sex marriage. Twelve years later, marriage equality became the law of the land. People who were in committed relationships with one other person of the same sex experienced tremendous changes. American citizens who were in relationships with non-citizens could secure immigration status. Gay and lesbian parents no longer had to undertake the humiliating process of legally adopting their own (nonbiological) children. Partners would not be denied hospital-visitation rights. A great financial burden was lifted for many couples: people could add their partners to their health-insurance plans, couples could file joint federal tax returns, and surviving partners wouldn’t have to pay backbreaking taxes on money or property they inherited from their partners.

The gains in visibility and public acceptance were perhaps even more striking. If the state now recognized and celebrated same-sex relationships, it seemed there was no longer any reason for L.G.B.T. people to hide. Here, for my straight readers, I want to explain what I mean by hiding. I’m not necessarily talking about the closet but, rather, about a daily acquiescence to a set of norms. This acquiescence becomes second nature. I was a queer journalist and activist in the United States in the nineteen-eighties and early nineties, and then I left the country for twenty years. Within a couple of years of returning, in 2015, I was covering a high-profile trial in federal court in Boston. A public defender was scheduled to present a crucial argument. She stood up to face the court, and my heart sank. She was wearing a baggy man’s suit. She had close-cropped gray hair. She was a butch lesbian who was not hiding one bit, and I just knew, as certainly as I had walked this earth in suits for several decades, that it was going to cost her. But, talking to colleagues over lunch that day, I realized, to my great surprise, that, of everyone in the press room, I was the only person who felt this way.

But you didn’t need to have left the U.S. for two decades to experience a kind of victory vertigo in the final years of the Obama Presidency. Many of my friends described the same sensation. Some even complained that there was nothing left to accomplish. Others, however, warned of an inevitable backlash, and noted that L.G.B.T. people had little to protect ourselves against it. The marriage-equality movement had performed a kind of legal leapfrog: in more than half of the states, one could legally marry a partner of the same sex and get fired for it, or be denied housing. In a sense, the marriage movement laid the groundwork for backlash by making queer people more visible—including those who didn’t even stand to benefit from marriage rights.

The backlash took the shape of a variety of “religious freedom” laws that effectively sanction anti-L.G.B.T. discrimination—including one signed in 2015 by Mike Pence, who was then the governor of Indiana. It took the shape of so-called bathroom bills, the first of which passed in North Carolina, in 2016, which would require people to use the bathroom designated for the sex they were assigned at birth. It took the shape of President Trump’s ban on transgender people in the military.

Federal courts have been divided on the question of whether Title VII bars discrimination based on sexual orientation or gender identity. Two of the cases that the Supreme Court plans to take up are cases of employment discrimination on the basis of sexual orientation. In one of them, involving a skydiving business on Long Island, in New York, the Second Circuit interpreted Title VII as applying to sexual orientation; in the other case, involving a child-welfare-services coördinator in Clayton County, Georgia, the Eleventh Circuit came to the opposite conclusion. The third case, from Michigan, concerns a transgender woman who was fired from her job at a funeral home because of her gender expression; the court in the Sixth Circuit ruled that she was protected by Title VII.

As currently constituted, the Supreme Court appears likely to resolve the contradictions by ruling that the Civil Rights Act does not ban discrimination against L.G.B.T. people. This would be the kind of legal backlash that could take a generation to undo. But the decision itself may not appear for another year. Until then, all most of us can do is watch this fragile object—queer rights in the United States—take an excruciatingly slow tumble.